Thursday, 22 July 2010

The details of the law underlying the case of Saeedi are complex – but its message is simple. Under EU law, member states have to provide minimum standards for the reception of asylum seekers.

But the obligations themselves relate to another body of law that exists, at least philosophically, outside the boundaries of the economic imperatives of the European Union: social and economic rights.

When these were attached to the Maastricht treaty in 1992 as the social chapter, Britain used its opt-out to avoid them becoming part of British law. On this basis, Mr Justice Cranston in the high court said that these rights were not directly enforceable against the UK – that the charter was an aid to interpretation only.

But both proponents and antagonists of social rights have always pointed out that rights form part of the unwritten constitutional underpinnings of the acquis communautaire of European law and that those provisions set out in the charter do not add anything in practical terms to the duties already imposed on states by treaty articles, regulations and directives when combined with rights as set out in the European convention on human rights (ECHR) and the individual constitutions of member states.

But the pinch point may be precisely here, where humanitarian law on refugees meets the basic economic objectives of harmonisation between member states. The entire raft of EU asylum law – from the Dublin regulation imposing responsibility for asylum, to the various directives setting out requirements for adequate treatment, due process, standard of living and international protection – is designed to reduce inconsistencies between member states so as to prevent forum shopping or "secondary movement" by asylum seekers.

To be sure, Article 3 of the ECHR, which can form the basis of a claim in the application of EU law, prohibits "inhuman and degrading treatment". But recent rulings have set the bar high for this provision; it is not brought into play by mere poverty and inadequate medical treatment. Even if extreme destitution can be proved, there must be a close and direct link between the destitution and the actions of the state. In asylum cases, the link between the deporting state and the destitution which occurs in the receiving state is too attenuated to engage the responsibility of the former.

So it is generally agreed that there is no right to accommodation or to a minimum standard of living which can be drawn from the ECHR. That is a matter for social legislation. But this position may change if directly enforceable EU rights encompass the rights set out in the common European asylum system and the charter. The level of protection afforded by the charter may never be lower than that guaranteed by the convention but it can be more extensive. A transfer under the Dublin regulation may now be challenged on the basis that it is not compatible with the right to human dignity – a right whose threshold has not been set by any equivalent case law to that which has been thrashed out under Article 3 of the ECHR – or the right to asylum, or any of the range of requirements relating to work, pay, medical treatment, social welfare services and so on in the charter.

In the course of the proceedings, the claimant adduced a significant volume of reports from the Council of Europe, UN high commissioner for refugees and NGOs about the conditions for asylum seekers in Greece. In earlier asylum cases involving Greece, Lord Justice Laws has made observations about "shaky" Greek procedures for implementing EU asylum directives, and Lord Hoffman acknowledged in Nasseri that the practice there for dealing with asylum applications may leave something to be desired and that very few applicants were accorded refugee status.

It was plain from the evidence considered by the divisional court that there "is no budget in the Greek kitty for a fair, effective, individualised and appropriate examination of asylum claims" imposed by the relevant EU directives.

This is not to cast a slur on an individual member state but it is ironic and also inevitable, in view of the recent economic fallout, that Greece should be at the epicentre of this particular legal earthquake. It is a very poignant example of how a legal system – the EU in this case, both in its economic and political manifestations – can be subversive of the very things it sets out to protect. It is not rocket science to deduce that a member state may not be able to fulfil its requirements under the Dublin regulation, related directives and the charter of fundamental rights, with regard to humanitarian treatment of refugees, precisely because of the austerity measures imposed as a condition on its continuing membership of the European Union.